EFF Fights Texas' Claims That Searching A Cell Phone Is No Different Than Searching 'A Pair Of Pants'

from the caution:-pants-may-contain-internet-history dept

Although the prevailing winds are now beginning to shift a little, it has been the opinion of many in law enforcement (and backed up by the courts) that they are welcome to search the contents of a detainee's cell phone without obtaining a warrant. The thought process seems to be that anything on that person (or in their immediate vicinity) is fair game.

Teenager Anthony Granville was arrested at his high school for a misdemeanor and booked into the county jail. All of his belongings, including his cell phone, were taken from him and placed in the jail's property room while he was locked up. Three hours after his arrest, a different officer than the one who arrested Granville at the high school went into the property room and, without a search warrant, looked through Granville's phone in search of evidence connected to another, unrelated felony.

Fortunately (and correctly), the trial court suppressed the evidence "recovered" from Granville's phone, stating that the officer had time to obtain a warrant. It also pointed out the likely reason for the lack of a warrant -- namely, "no exigent circumstance" to justify searching for unrelated evidence on Granville's cell phone.

The state appealed, rationalizing the officer's actions using a couple of rather incredible claims, the second of which shows a complete (or willing) lack of comprehension as to how much information the average cell phone can contain.

The state appealed to the Texas Court of Appeals, arguing that Granville had no expectation of privacy in the contents of his cell phone while it was in the jailhouse, noting that looking through the phone was no different than looking at a person's clothes when they are booked into jail.

The appeals court followed the trial court in shooting down the state's arguments, along with its generally terrible comparison.

The appellate court disagreed with the government's analogy, finding the amount of information stored on mobile devices make a cell phone search far more invasive than a search of clothing.

Despite the count being 0-2, state prosecutors show no willingness to stop swinging, bringing the case to the Texas Court of Criminal Appeals, where it will once again pit its lousy justification for Fourth Amendment violations against the EFF, the Texas Civil Rights Project and the ACLU of Texas.

In our amicus brief we explain the government had no excuse for not obtaining a warrant before searching Granville's phone. A person doesn't surrender their expectation of privacy in the contents of their phone once the phone is in the hands of jail officials. Plus none of the exceptions to the search warrant requirement applied. This wasn't a search "incident to arrest "since it took place hours after Granville was arrested, when the phone was out of his control. And it wasn't an "inventory search" because once the phone itself was inventoried and secured by the police, there was no need to inventory the data on the phone. Plus, an inventory search can't be used as a pretext for a clearly investigatory search, which this certainly was.

Refining broad search policies and eliminating procedural gaps is a necessity as cell phones move further and further away from being simply portable phones. The amount of personal information contained on the average cell phone, along with the number of cloud-based services accessed through them, can make for a very rewarding fishing trip.

These days, searching a phone under the pretenses stated above isn't much different than an officer letting himself into a detainee's home and rooting around on the home computer. Between social networks and cloud services, much of what's "contained" in a cell phone is accessible from multiple points. Arguing that a cell phone is nothing more than a set of pants pockets is deliberately understating the reality in order to justify skirting the Fourth Amendment. Here's hoping the state goes 0-3.

Re: parasitizing on a dead thread...

but want to interject some points which the denizens of techdirtia should understand the significance of:

1. we are RAPIDLY approaching the point where not just micro-botz, but nano-botz will be capable of numerous surveillance (if not 'direct-action') functions...

2. they will be all but undetectable to normal senses...

3. does that therefore mean since they are unobtrusive, they are beyond the reach of the law/constitution which bars 'unreasonable search and seizures' ? ? ?

4. *besides* the one-way slide which allows more and more 'unreasonable search and seizures', who thinks 'The Law' will not side with Empire and allow any/all micro/nano bot 'searches', since law enforcement doesn't think it is 'unreasonable' at all to send a nano-bot up our cloaca...

With all the emphasis the government has been putting on cyber- being differently enforceable than non-cyber- you would think this could apply to searches of electronic devices. If you can search (opposed to cyber-search) a person's electronic device, then you can't also turn around and charge someone double crimes because it involved an electronic device.

I propose that any and all legislation involving differentiating cyber- from non-cyber- also include equal differentiating between how law enforcement is able to handle electronic or cyber-devices.

Re:

and had the phone been searched when the guy was first arrested, they might have had a stronger argument, albeit still a weak one. This was several hours later. Exgent Circumstances is basically only when there is a risk of evidence being hidden or lost. They have the phone already, they can afford to delay while they get a warrant.

Searching the phone can be the same as searching a pair of pants

The analogy does make sense, as long as the search is confined to the physical object, instead of its digital contents.

If they got the phone, opened the battery cover, and removed the battery and SIM, looking for hidden objects, but got no further, it could be considered as very similar to searching a pair of pants and rummaging through its pockets.

The analogy stops working as soon as they bring out the screwdrivers; that would be similar to completely undoing the stitching of the pair of pants, to look for hidden stuff within the fabric.

And the analogy does not work at all for data; normal pairs of pants do not have data or network access.

Re: Searching the phone can be the same as searching a pair of pants

Re: Re: Searching the phone can be the same as searching a pair of pants

But the dog claim can be bogus too. Unless they can provide documentation of the specific training that the dog received including what the specific signal the dog is trained to give when it detects something and actual evidence (such as a video) that the dog gave the signal when presented with the device, what's to keep them from simply claiming that the dog gave the signal just to give them an excuse.

Re: Re: Re: Searching the phone can be the same as searching a pair of pants

Agreed ...

The cyber police dog will probably be an app which sports an animated dog making sniffing noises and followed by "the signal" thus indicating contraband. The whole will be a ruse resulting in much laughter.

Re:

Of course, now GEICO has an "e-insurance card" on your phone so you can easily hand over your phone to the officer during a traffic stop along with your license. If they're nice, they'll just hand it right back, but they might just take it back there to the cruiser to fill out their paperwork*.**

* Paperwork - electronic or paper document designed to contain any and all data gleaned from the accused.

** Feel free to use that sentence as an example of how to use they're, there and their.

Such a good idea

These days, searching a phone under the pretenses stated above isn't much different than an officer letting himself into a detainee's home and rooting around on the home computer.

Tim, that is such a good idea. If they find keys in the pocket in the detainee's clothing, then they could use it to go into the house and search for data. Afterall, it is no different to looking through pants...

Terrorists is what these EFF morons are. The Govt should be able to spy on anything and everything if it'll keep our citizens safe. We must protect our citizens from everything. Themselves included. (sarcasm...)

The bright side...

So if someone is booked into jail on a misdemeanor and a search of his pants reveals a picture of him posing with a dead body and a diary detailing a murder plot the police need a search warrant to look at it? If the phone is not password protected, I fail to see how it requires a warrant.

Re:

That falls under the plain sight doctrine during inventory search. And intent is very important to understand the difference.

If you uncover plain-sight evidence in the act of an inventory search (intent = making certain there are no hidden weapons and making sure the detainee can recover his/her belongings later), you can act on it, because it was found in a reasonable manner.

If you conduct an investigatory search on someone's phone (intent = finding incriminating evidence) you need a warrant because you need to show cause for invading someone's privacy.

See the difference? Those doctrines exist to create a bright line between public security and individual privacy.

Re: Re:

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Much like a laptop going through customs, phones contain a lot of information. And like a laptop, the owner generally does not choose specific information to include - unlike the physical world where your hypothetical person chose to carry his diary and a picture around. Also, a phone may not actually include some of this information, but just links to where it resides in the cloud. If I choose to carry my keychain around on me, and am detained, does that mean the police can search my house without a warrant? My storage locker? My friend's house (that I also have a key to)?

Re:

Yeah, and by that logic, if you don't lock your house, then the police are welcome to walk right in, and browse your computer, unless password protected, and look in all your closets and drawers, unless locked.

Lock everything or post a sign saying 'private' or else you have no right to privacy.

Re: Wait, what?

papers

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It seems pretty obvious that a the digital information stored in a cell phone should count as "papers" with regards to 4th amendment protections.

Solution or tampering with evidence?

So, this case seems to be decided properly - they need a warrant to read through someone's phone contents.
However, there have been other courts that have decided against this. Some have even decided that cops can demand your phone password. One of the major issues is that passwords to cloud data are saved on most people's phones, so cops can get access to more stuff than is on the phone itself. (I have problems with them accessing stuff on the phone itself, but the amount of cloud data I have available on my phone is huge).

What if there were an app that allowed you to have 2 passwords. One password simply unlocked the phone. The other password unlocked the phone, but wiped all your login information? Would that be destroying or tampering with evidence?

Re: Solution or tampering with evidence?

Re: Re: Solution or tampering with evidence?

This is EXACTLY what I have been thinking on cases like this. This is the slipperiest kind of slope I can imagine, and in my opinion exactly the type of thing the constititution was intended to defend against.